Belmore 88 Pty Ltd v Douglas (No 2) - [2023] NSWSC 1228

Supreme Court

New South Wales

Medium Neutral Citation: Belmore 88 Pty Ltd v Douglas (No 2) [2023] NSWSC 1228
Hearing dates: 13 October 2023
Date of orders: 13 October 2023
Decision date: 13 October 2023
Jurisdiction: Equity - Expedition List
Before: Parker J
Decision:
See [18]

Catchwords:
COSTS – party/party costs – first defendant previously represented to the Court in separate proceedings that contracts had been exchanged for the sale of property belonging to him and subject to interlocutory orders of the Court – plaintiff sought declaration that contract arising from exchange was void – plaintiff’s claim dismissed on ground that no exchange had taken place – costs follow the event – utility of plaintiff’s claim - plaintiff’s application for costs refused

Legislation Cited:
Uniform Civil Procedure Rules 2005, r 42.1

Cases Cited:
Nil

Texts Cited:
Nil

Category: Costs
Parties: Belmore 88 Pty Limited (Plaintiff)
Troy Pestano Douglas (First Defendant)
Keith Hilton Wood (Second Defendant)
Representation:
Counsel:
P Afshar (Plaintiff)
Solicitors:
Baybridge Lawyers (Plaintiff)
Troy Pestano Douglas (Self-represented)
Hilton Keith Wood (Self-represented)

File Number(s): 2023/86912
Publication restriction: Nil

JUDGMENT

Revised from transcript and annotated; issued on 16 October 2023

On 23 August this year, I delivered my substantive judgment disposing of these proceedings: Belmore 88 Pty Ltd v Douglas [2023] NSWSC 1011 (“J1”). The plaintiff has now applied for an order that the defendants pay its costs of the proceedings, and that application is the subject of this judgment.
The background and procedural history are set out at J1 [3]-[20]. For present purposes, they may be summarised as follows.
The proceedings arise out of earlier proceedings brought in this Court. In those proceedings, which are still pending, the plaintiff (“B88”) relevantly seeks to enforce a negative pledge by the first defendant, Mr Douglas, over a residential unit owned by him at Double Bay in Sydney’s eastern suburbs. That claim was the subject of an application for interlocutory orders preventing Mr Douglas from taking any steps to sell or encumber the property. Consent orders to that effect were made by Kunc J in December last year (see J1 [6]-[9]).
The orders made by his Honour did permit the sale of the property, subject to certain conditions as to notice and setting aside the proceeds. Mr Douglas entered into negotiations with the second defendant, Mr Wood, to sell the property and a dispute arose as to whether such a sale satisfied the conditions specified in the order and could proceed. In the course of a hearing before Meek J in January, Mr Douglas informed the Court that he had exchanged contracts with Mr Wood and produced a copy of the counterpart of the allegedly exchanged contract. This ultimately resulted in the institution of these proceedings, in which B88 sought a declaration that the purported contract was void.
In bringing these proceedings, B88 did not dispute the assertion that contracts had been exchanged in a way which would ordinarily have resulted in a valid and binding contract coming into existence between Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 1228
Decision Date: 13 October 2023

CaseChat Overview and Summary

The case of Belmore 88 Pty Ltd v Douglas (No 2) involved a dispute between the plaintiff, Belmore 88 Pty Ltd, and the defendant, Douglas. The plaintiff sought a declaration that a contract arising from an exchange of contracts for the sale of property belonging to the defendant was void. The case was heard in the Supreme Court of New South Wales. The defendant had previously represented to the Court in separate proceedings that contracts had been exchanged for the sale of the property. However, the plaintiff's claim was dismissed on the ground that no exchange had taken place. The plaintiff subsequently sought an order that the defendant pay their costs, arguing that their claim had a degree of utility.

The legal issue before the Court was whether the plaintiff was entitled to an order that the defendant pay their costs. The Court considered the utility of the plaintiff's claim, which was dismissed on the basis that no exchange of contracts had taken place. The Court noted that the plaintiff's claim was based on a misrepresentation made by the defendant in separate proceedings, and that the plaintiff had proceeded with the claim despite being aware of the defendant's position. The Court concluded that the plaintiff's claim had no real prospect of success and was therefore frivolous.

The Court refused the plaintiff's application for an order that the defendant pay their costs. The Court noted that the plaintiff's claim was not only unsuccessful, but was also based on a misrepresentation made by the defendant in separate proceedings. The Court held that the costs of the proceedings should follow the event, and that the defendant was not liable to pay the plaintiff's costs. The Court further held that the plaintiff's claim had no degree of utility, and that the plaintiff's application for costs should be refused.

Orders